Palmer v. State, 6 Div. 966

• Decision Date: 21 April 1981
• Docket Number: 6 Div. 966
• Citation: 401 So.2d 266
• Parties: Hugh PALMER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 266

401 So.2d 266

Hugh PALMER v. STATE.

6 Div. 966.

Court of Criminal Appeals of Alabama.

April 21, 1981.

Rehearing Denied May 26, 1981.

John A. Bivens of England, Bivens & Hardaway, Tuscaloosa, for appellant.

Charles A. Graddick, Atty. Gen. and Sandra M. Solowiej, Asst. Atty. Gen., for appellee.

ON RETURN TO REMAND

BOWEN, Judge.

The opinion issued by this Court on October 7, 1980, is hereby withdrawn and the following becomes the opinion of the Court.

In April of 1978, Mrs. Edwin Rinehart was killed in an automobile accident caused by an intoxicated Hugh Palmer.

The defendant was indicted and convicted for second degree murder. Sentence was twenty years' imprisonment.

I

Initially, it is argued that an inculpatory statement was improperly admitted into evidence in that it was not proven that the defendant was capable of intelligently and knowingly waiving his constitutional rights because of his physical and mental condition following the collision.

Approximately two hours after the accident, Alabama State Trooper L.S. Barginear questioned the defendant in the emergency room of the Druid City Hospital. The defendant was lying on a bed or cot awaiting treatment. Trooper Barginear read the defendant his "Miranda " rights from a card and asked him if he understood those rights. The defendant said he understood and consented to talk. The trooper stated that the defendant's speech was "slurred" and that the defendant appeared to have been drinking. However, Barginear stated that the defendant responded to all of his questions, appeared to understand what his rights were, appeared to have his faculties about him, responded to his questions in an intelligent manner, and appeared to have no difficulty in comprehending what the questions were and providing answers. When asked, "Is there anything in your mind to cause you to hesitate about believing that Mr. Palmer did knowingly and intelligently understand the questions on that occasion?", the trooper responded, "Like I said, he understood them."

The defendant had a blood-alcohol level of .26. There was no evidence of how this degree of intoxication affects comprehension and understanding. The defendant had an open wound on his head which had not yet been sewn up. The delay in closing the wound was apparently caused by the fact that the emergency room physician requested the assistance of a facial plastics doctor to come in and repair the cut over the eye. This laceration on the defendant's face was "pretty extensive" but there was no concussion. The emergency room physician responded to a question about whether he noticed anything unusual about the defendant's speech: "Well, if you mean was he all together, with it he was not; he was groggy, almost lethargic." When this physician was questioned about the defendant's ability to answer his questions and assist in the examination, the doctor replied, "When I asked him to roll over, sit up, this sort of thing, he could do that."

The trial judge wisely reserved his ruling until he had heard the trooper's questions and the responses given by the defendant. The trooper testified that the only question that the defendant had difficulty with was his current address. The defendant did not know his box number but the trooper stated that "they change them up there every three days, I believe." The defendant told Trooper Barginear that he was taking medication for high blood pressure.

In order for intoxication to render a confession inadmissible, it must be shown that the mind would have been impaired substantially. This principle was discussed in Rogers v. State, 365 So.2d 322, 334 (Ala.Cr.App.), cert. denied, 365 So.2d 334 (Ala.1978), where this Court concluded:

"Where ample evidence, even though conflicting, exists from which the trial judge could conclude that the appellant was not intoxicated to the extent of mania, the admission of a confession for a jury's consideration is not an abuse of discretion." Rogers, 365 So.2d at 334.

See also Jackson v. State, 375 So.2d 558 (Ala.Cr.App.1979). This principle holds true even if the defendant was intoxicated to the extent that he could have been arrested for intoxication if on a public street. Woods v. State, 54 Ala.App. 591, 310 So.2d 891 (1975). Proof of intoxication amounting to mania or such impairment of the will and mind as to make a person confessing unconscious of the meaning of his words renders the confession made by him inadmissible, but a lesser state of intoxication will not render the confession inadmissible. Carter v. State, 53 Ala.App. 43, 297 So.2d 175 (1974). The fact that an accused is not in full possession of his mental faculties when the confession is made does not render it inadmissible, but only affects the weight to be accorded by the jury. Elrod v. State, 281 Ala. 331, 202 So.2d 539 (1967); Sullivan v. State, 351 So.2d 659 (Ala.Cr.App.), cert. denied, Ex parte Sullivan, 351 So.2d 665 (Ala.1977); Arnold v. State, 348 So.2d 1092 (Ala.Cr.App.), cert. denied, Ex parte Arnold, 348 So.2d 1097 (Ala.1977); Barnett v. State, 348 So.2d 512 (Ala.Cr.App.1977). Through the trooper's testimony, the State offered evidence that the confession was voluntary. As the trial judge did, we have taken into account the defendant's answers to Trooper Barginear's questions. Here there is simply insufficient evidence to indicate, as a matter of fact, that the defendant's reason, intellect or will was so impaired as to render any statement he made involuntary. The admission of the confession was without error.

II

In its case in chief, the State introduced evidence that the defendant had been arrested in 1973 for driving while intoxicated and for reckless driving and that he had also been arrested in 1976 for driving while intoxicated. The circumstances and details surrounding the events which culminated in the two arrests were admitted into evidence. Included in these facts were the results of photoelectric intoximeter tests on the defendant. In the 1973 incident the defendant measured .210; in 1976, .18. There was no indication of any type made before the jury that the defendant was ever convicted of any of these charges. In fact, the defendant was actually convicted of reckless driving in both cases but the fact of his convictions was never presented to the jury. In sum, the prosecution merely introduced evidence of other acts of driving while intoxicated by the defendant. The accident which caused Mrs. Rinehart's death occurred in April of 1978. The defendant objected to the admission of these prior offenses on the grounds that they were "not relevant in point of time" and because there was no showing that the defendant was represented by counsel.

In McGhee v. State, 333 So.2d 865, 868 (Ala.Cr.App.1976), this Court addressed this same issue. There this Court reversed the conviction because the State introduced prior convictions of the defendant for driving while his license was revoked, running stop signs, reckless driving, speeding and improper brakes, which convictions occurred, on the average, approximately ten years before the fatal accident. In reaching this decision this Court noted:

"It seems that under certain circumstances prior conduct on the part of the appellant, including recent criminal convictions for driving while intoxicated, might be probative of the state of mind of the appellant on Christmas Eve 1974 (the night of the fatal accident). If evidence had been introduced tending to show that the appellant habitually drove his car while intoxicated or that he had numerous recent convictions for driving while intoxicated, such evidence would probably be indicative of malice, or a wanton and willful disregard for human life...